The Ohio Senate has introduced two proposed statutes that would require local enforcement agencies to enforce civil and criminal immigration laws when requested to do so by the United States Immigration & Customs Enforcement (“ICE”). These laws are being proposed pursuant to section 287(g) of the Immigration & Nationality Act which allows the federal government to enter into a memorandum of understanding with local enforcement agencies to enforce immigration laws. A prerequisite to entering into such agreement is that local enforcement agencies must be properly trained in order to serve in this function.
It is worthy to note that in March of 2009, Richard M. Stana, Director of Homeland Security testified before Congress wherein he complained that ICE lacks internal controls to implement INA section 287(g) and lacks the ability to supervise local enforcement agencies when enforcing such immigration laws. Below is a summary of Ohio proposed Senate Bills 35 and 150:
Senate Bill 35: Seeks to enact section 109.45 of the Revised Code to direct the Attorney General to pursue a memorandum of agreement that permits the enforcement of federal immigration laws in this state by law enforcement officers. (Emphasis added).
Senate Bill 150: Seeks to amend sections 9.63, 311.07, and 341.21 of the Revised Code to provide that a board of county commissioners may direct a sheriff to take custody of persons who are being detained for deportation or who are charged with civil violations of immigration law and to expressly authorize state and local employees and county sheriffs to render assistance to federal immigration officials in the investigation and enforcement of federal immigration law. (Emphasis added).
Below is attorney Gus Shihab’s testimony before the Ohio Senate Committee on State & Local Government and Veterans Affairs:
Mr. Chairman, Honorable Members of the Ohio Senate and Distinguished Public.
My name is Gus Shihab. I am an attorney in private practice in Columbus, Ohio for nearly 17 years. My area of practice is immigration and nationality law. I have represented thousands of clients during my career in all facets of immigration law. This is a complex area which most lawyers shy away from. Only 10% of all lawyers in our nation have taken this unique area of practice. This area of law is always changing through the issuance of new regulations, new administrative procedures, new court, appellate precedence, rulings and agency memoranda. Suffice it to say, that an immigration lawyer must keep abreast of these changes on a daily basis.
I also hold the position of the Ohio Chapter Chair for the American Immigration Lawyers Association (AILA). I would like to tell you a little about AILA. AILA is a national bar association having 11,000 members nationwide. In our Ohio Chapter, we have about 240 lawyers. I can safely state that the vast majority of our lawyers and their clients would urge you to vote against Senate Bill 35 and Senate Bill 150. These are dangerous pieces of legislation; if these bills pass, we as Ohioans will regret to have ever passed a law that will do nothing but divide us as Citizens.
It is a coercive piece of legislation which punishes local political authorities if they refused to comply. It is also an unfunded mandate, one that imposes additional duties on local political law enforcement agencies without additional funding for training on implementation.
These bills will place our law enforcement officers in a position to act in a complex and unique area of law. There is a civil aspect and a criminal aspect to immigration laws. For instance, an alien’s violating his or her immigration status is not a matter that would cause the alien, in most instances, to be detained. On the other hand, an alien who may have been convicted of a crime and whose incarceration was suspended by a judge may be subject to mandatory detention under immigration laws. To put our law enforcement officers who deal with a variety of law enforcement issues on a daily basis, in this highly complex area to determine who is a criminal alien, who violated status, or who is subject to mandatory detention is unwise.
The immigration laws are confusing and require a specialized agency to enforce them. This agency exists and it is called the US Department of Homeland Security; it is a well-funded agency having several effective arms with numerous personnel in Ohio. These are the US Citizenship and Immigration Service as well as the US Immigration and Customs Enforcement. Their personnel are trained and immigration law is what they do on a daily basis.
These proposed bills further expose local political authorities to potential liabilities and for possibly violating the civil liberties of our citizens. You do not need a creative imagination to envision a situation where local political law enforcement, acting with little or no training in immigration laws, apprehending, or otherwise violating the liberties of a US Citizen or legal resident because they misunderstood their status. Many of our citizens in Ohio are foreign-born. Many are not fluent in English. There have been instances in the past where local political authorities in Kate, Texas mistakenly apprehended numerous Hispanic individuals only to find out that they were all Citizens and legal residents. The lawsuits which later ensued are mind-boggling. The room for error is huge. Leave the enforcement of these complex laws to those agencies that are trained and possess the knowledge and tools to do so.
This proposed legislation also will cause a chilling effect in the immigrant communities from cooperating with law enforcement. If this happens, this will be a major setback in our efforts to receive cooperation from those communities.
The International Association of Chiefs of Police is on record strongly disfavoring legislation that is before you today. This is an organization with more than 111 years of tenure assisting law enforcement agencies in research and training throughout our nation. The IACP believes that the concerns I have outlined to you here are real and they are documented in a memorandum which I would like to attach today for the record. The IACP believes that at a minimum, any legislation seeking to have state and local law enforcement agencies participate in immigration enforcement must be voluntary and must provide training. This legislation is exactly the opposite. It is an unfunded mandate and it is coercive. If local political authorities chose not to participate, they will lose funding.
On behalf of myself and the Ohio Chapter for the American Immigration Lawyers Association, I urge you to vote against this legislation.